82 N.Y.S. 527 | N.Y. App. Div. | 1903
The plaintiff was nonsuited, and upon this appeal he has a' right to have it presumed that the jury would have found the facts winch the evidence would justify in his favor, and we are of opinion that the case presented was one for the determination of the jury. The jury might have found from the evidence that the plaintiff was. employed in the defendant’s brewery, in an occupation that saturated bis boots and clothing, and that the plaintiff, with the knowledge and consent of the defendant, was in the habit of removing his boots and clothing and hanging them up directly over the boiler room, in a position where they would dry, and substituting dry clothing to go home in, making the change in the morning before going to work. While it may be that this was not absolutely necessary, it was a convenience and evidently conduced to the comfort of the employee, and the question presented is whether the injury resulting to the plaintiff, while engaged in making this change of clothing, was due to the negligence of the defendant in respect to any duty which it owed to the plaintiff. It appears that at some time t-here was a floor over the entire boiler room, but some years
The facts appeax, from the evidence, that oh a given day the plaintiff repaired to this place for the pux’pose of changing his •clothes, as had been his custom for more than six months, with the knowledge and consent of his foreman, and while so occupied the projecting floor gave way, precipitating the plaintiff upon the boilers below, doing him a serious injury. There was nothing in the appearance of the floor, from the upper side, to indicate that it was less safe than the remaining portions, and the defendant having
The judgment appealed from should be reversed.
Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.